This case arose from an allegation that the State of Rhode Island Department of Corrections (DOC) fails to adequately compensate five officers who care for police dogs. The State moved to dismiss Plaintiffs’ two claims: violation of the Rhode Island Minimum Wage Act, R.I. Gen. Laws § 28-12-1 et seq.; and violation of the Fair Labor Standards Act (FLSA), 29 U.S.C. § 201 et seq. The Court concluded that no private right of action exists under the Rhode Island Minimum Wage Act, and that the State has not waived its sovereign immunity as to the FLSA claim.

The Court first determined that the Rhode Island Minimum Wage Act does not provide for a private right of action, “[w]hile the Minimum Wage Act is silent as to whether an individual private right of action exists, it does speak to enforcement. Section 28-12-13 provides: “Responsibility for enforcement-[t]he provisions of this chapter shall be carried out by the division of labor standards”; and § 28-12-14(7) provides: ‘Enforcement powers-[t]he director or the commissioner or any authorized representative of either shall have the authority to: [b]ring all actions, suits, complaints, and prosecutions for the violation of any of the provisions of this chapter.

These provisions, combined with the lack of an express private right to sue, indicate that the General Assembly did not intend to provide an individual right of action to aggrieved employees. See Transamerica Mortgage Advisors, Inc. v. Lewis, 444 U.S. 11, 19 (1979) (“[I]t is an elemental canon of statutory construction that where a statute expressly provides a particular remedy or remedies, a court must be chary of reading others into it.”); In re John, 605 A.2d 486, 488 (R.I.1992) (noting that when a statute “does not plainly provide for a private cause of action, such a right cannot be inferred”); Narragansett Pellet Corp. v. City of East Providence ex rel. Fitzgerald, C.A. No. 06-464 ML, 2007 WL 2821538, at *6-7 (D.R.I. Sept. 25, 2007) (no private right of action where statute prescribed a particular enforcement process). There can be little doubt that had the General Assembly deemed it appropriate or necessary to afford employees a private right of action against employers to enforce the minimum wage law, it would have expressly done so. Compare, e.g.,R.I. Gen. Laws §§ 28-5-24.1, 28-29 (setting forth framework for individual claims under Fair Employment Practices Act). Absent any indication from the statute itself or in the legislative history that this is what the legislature intended, it would be clearly inappropriate to create such a right by judicial fiat.”

The Court then tackled the more nuanced issue of whether Rhode Island has waived sovereign immunity under the FLSA, and held it has not. “The issue in this case, however, is not so easily dispatched because of an interesting procedural wrinkle: whether the State waived its Eleventh Amendment immunity as to an FLSA claim by removing the action from Rhode Island Superior Court to federal court?

A state may consent to suit by a clear declaration of its intention to submit itself to federal court jurisdiction, and may waive immunity to suit by voluntarily invoking federal court jurisdiction. See Coll. Sav. Bank v. Fla. Prepaid Postsecondary Educ. Expense Bd., 527 U.S. 666, 670, 675 (1999); Lombardo v. Pennsylvania Dep’t of Pub. Welfare, 540 F.3d 190, 195-96 (3d Cir.2008). The “test for determining whether a State has waived its immunity from federal-court jurisdiction is a stringent one.” Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 241 (1985). There is no suggestion here that Rhode Island expressly consented to be sued for an FLSA violation in federal court. Rather, Plaintiffs say the State’s removal voluntarily invoked jurisdiction, constituting an implied waiver of immunity.

The leading decision on “waiver by removal” is Lapides v. Bd. of Regents of Univ. Sys. Of Georgia, and it is instructive but not on all fours with the present circumstances. 535 U.S. 613 (2002).Lapides discussed whether a state that removes a claim to federal court waives Eleventh Amendment immunity when the state already consented to suit for the claim in its own state court. Id. at 616-17.The Supreme Court held that it did, because otherwise the state would unfairly regain in a federal forum an immunity which it voluntarily abandoned in state court. Id. Importantly, though, the decision did not directly address the effect of removal of a claim as to which a state retained immunity in its own state court-arguably the situation here, and the subject of post-Lapides debate. See, e.g., Stewart v. North Carolina, 393 F.3d 484, 490-91 (4th Cir.2005) (discussing scope of Lapides and holding a state does not waive immunity by removal when it would have been immune from suit for the same claim in state court); Boone v. Pennsylvania Office of Vocational Rehab., 373 F.Supp.2d 484, 499-500 (M.D.Pa.2005) (barring ADA claims against state despite removal because state retained immunity from suit under the ADA in state court).

Under Lapides, the question here, then, is whether Rhode Island retained its immunity from suit as to an FLSA claim in its own courts. If it did, removal triggers no concerns about inconsistency or unfair litigation gamesmanship because in either forum, the State maintains its immunity. As a starting point, under Alden v. Maine the State is correct that it is immune from suit in its own court under the FLSA absent consent or waiver. 527 U.S. 706, 755-57 (1999). Thus the key issue is Plaintiffs’ contention that Rhode Island waived this Alden immunity in its own courts.

Waivers of immunity must not be lightly implied and must be “stated by the most express language or by such overwhelming implications from the text as [will] leave no room for any other reasonable construction.” Edelman v. Jordan, 415 U.S. 651, 673 (1974) (internal citation and quotation omitted); see Andrade v. Rhode Island, 448 A.2d 1293, 1295 (R.I.1982) (noting courts must presume the legislature did not intend to “deprive the state of any part of its sovereign power unless the intent to do so is clearly expressed or arises by necessary implication from the statutory language”). The Court has not identified, nor have the parties offered, any Rhode Island state case addressing waiver of immunity as to a wage claim.

Plaintiffs first suggest the State made itself amenable to suit for claims “identical” to the FLSA via the Rhode Island Minimum Wage Act, so “it does not make much sense to allow the State to ignore parallel federal law.”They claim “there is no question that the state courts permit suits against the State under the Act.”(See Pl.’s Obj. to M. to Dismiss 8 (Doc. No. 8).) But there is indeed a question. As detailed above, the statute lacks express consent by the State to be sued for wage violations. Compare Anthony v. Iowa, 632 N.W.2d 897, 900-02 (Iowa 2001) (rejecting state’s immunity claim under Alden to FLSA action in state court where state wage and labor scheme provided express consent to be sued). The fact that Rhode Island’s wage statute excludes some, but not all, state employees from the overtime provisions (arguably suggesting all other state employees are subject to the provisions) does not mean the State intended to make itself amenable to suit for those claims. And while it may well be the case that the State could be subject to an action in its own courts by the Rhode Island DOL, or an FLSA action by the Secretary of Labor in federal court, this is not a substitute for a clear and unequivocal waiver of immunity for private causes of action. The bottom line is that the simple enactment of wage provisions reflecting or mirroring the FLSA, without more, is too thin a reed on which to find clear waiver. See Jarrett v. Alexander, 235 F.Supp.2d 1208, 1215 (M.D.Ala.2002) (discussing waiver of immunity for FLSA claim in federal court where state did not waive immunity merely because it “incorporated portions of the FLSA or its regulations into state law”); Crawford v. Lexington-Fayette Urban County Gov’t, No. 06-299-JBC, 2007 WL 101862, at *2-3 (E.D.Ky. Jan. 10, 2007) (refusing to find waiver of immunity simply because state wage law broadly defined “employer” and “employee”)

Finally, Plaintiffs urge “waiver by necessary implication.” This, they claim, comes from the fact that sovereign immunity in general has been “obliterated” for many tort and employment-related claims in Rhode Island-creating a landscape “vastly” different than the one in Maine, which was found not to constitute waiver in Alden.

There is no question that in some circumstances Rhode Island has explicitly waived its sovereign immunity. See, e.g.,R.I. Gen. Laws § 9-31-1 (governmental tort liability). But no such explicit waiver exists here, and the cases on which Plaintiffs rely for implied waiver are very situation-specific and fail to support this broad, so-called “obliteration” of immunity. See, e.g., Pellegrino v. Rhode Island Ethics Comm’n, 788 A.2d 1119, 1123-25 (R.I.2002) (state impliedly waived immunity by providing for compensation to commission members for attendance at meetings and then refusing to pay, because disallowing recovery would give statute a “mere nugatory existence”); Donnelly v. Town of Lincoln, 730 A.2d 5, 10 (R.I.1999) (town not insulated from prejudgment interest award in workers compensation case because it voluntarily joined workers’ compensation system) (emphasis added); Capital Props., Inc. v. State, 749 A.2d 1069, 1081 (R.I.1999) (over city’s protest, state could waive immunity and bring declaratory judgment action to determine contractual obligations).

In sum, Rhode Island is not unlike many states that pick and choose what classes of suits to permit, and there is nothing wrong with such a selective practice: “To the extent Maine has chosen to consent to certain classes of suits while maintaining its immunity from others, it has done no more than exercise a privilege of sovereignty concomitant to its constitutional immunity from suit.” Alden, 527 U.S. at 758. Nothing in Rhode Island’s “landscape” or wage laws justifies finding waiver of immunity by necessary implication. See Reagan Constr. Corp. v. Mayer, 712 A .2d 372, 373 (R.I.1998) (“When a statute purporting to waive any aspect of the state’s sovereign immunity is examined, the language of the statute must be closely parsed and strictly construed.”).

Consequently, because the State did not consent to suit or waive its Alden immunity to be sued in its courts under the FLSA, removal does not waive its Seminole Tribe immunity in federal court. The result is harsh but could be easily changed with a stroke of the legislative pen, if so desired. See Rodriguez v. Puerto Rico Fed. Affairs Admin., 435 F.3d 378, 380 (D.C.Cir.2006) (“Taken together, Seminole Tribe and Alden mean that state employees no longer have any ‘court of competent jurisdiction,’ 29 U .S.C. § 216(b) [FLSA], in which to sue their employers for FLSA violations.”).”

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